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HQ 963202





April 4, 2002

CLA2 RR:CR:GC 963202 JGB

CATEGORY: CLASSIFICATION

TARIFF NO.: 6912.00.3950

Area Director of Customs
Newark/New York
C/O Chief, Residual Liquidation and Protest Branch 1210 Corbin St.
Elizabeth, NJ 07201

RE: Protest 1001-98102163; Cuthbertson Original Christmas Tree® Dinnerware; festive articles

Dear Area Director:

This is our decision on Protest 1001-98102163 against your classification of Cuthbertson Original Christmas Tree® Dinnerware under the Harmonized Tariff Schedule of the United States (HTSUS). The entries, made in 1997 and 1998, were liquidated on April 17, 1998 through June 6, 1998, and the protest timely filed on June 30, 1998.

FACTS:

The merchandise at issue consists of sets of standard dinnerware, in groups such as the 5-piece place setting (dinner plate, salad plate, bread and butter plate, and teacup and saucer); cereal dish, covered sugar and creamer, luncheon plate, coffee pot, oval vegetable bowl, giant and rectangle platter, quiche dishes, ramekins and oven-proof casseroles, rectangular baker-lasagne, and others. The protestant states that the dinnerware displays a festive motif, is marketed in Cuthbertson's Christmas catalogue and that 80 percent is sold between October and Christmas, presumably for use on Christmas. The dinnerware features a white background with a green depiction of a Christmas tree in its center. The Christmas tree design is a two-dimensional representation of a Christmas tree, with the decal under the glaze. The Christmas tree representations are various sizes, depending on the piece on which it appears. The cups have the design in the front and on the saucer with a mistletoe design on the inside of the cup. All the articles appear to be fired and dishwasher-safe and fully intended to be used to serve food and beverages. There is no indication in the submitted literature that they are for display or decoration only or that they are not safe for ordinary household use as dinnerware.

The protestant claims classification for the article in subheading 9505.10.5020, HTSUS, the provision for “Festive, carnival or other entertainment articles...parts and accessories thereof: Articles for Christmas festivities and parts and accessories thereof: Other: Other.”

You classified the dinnerware in subheading 6912.00.3950, HTSUS the provision for "Ceramic tableware, kitchenware, other household articles and toilet articles, other than of porcelain or china: Tableware and kitchenware: Other: Other: Available in specified sets: In any pattern for which the aggregate value of the articles listed in additional U.S. note 6(b) of this chapter is over $38, Other."

ISSUE:

Whether the Cuthbertson Original Christmas Tree® Dinnerware is classified in heading 9505.10.5020, HTSUS, as a festive article or whether it is classified as dinnerware according to its manufacture and value.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRIs) taken in their appropriate order provide a framework for classification of merchandise under the HTSUS. Most imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRIs may then be applied. The Explanatory Notes (ENs) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUS by offering guidance in understanding the scope of the headings and GRIs.

Heading 9505, HTSUS, provides, among other things, for festive, carnival or other entertainment articles. Articles for Christmas festivities are specifically provided for in subheading 9505.10, HTSUS.

In Midwest of Cannon Falls, Inc. v. United States, Slip Op. 96-19 (Ct. Int’l Trade, 1996), aff’d in part, rev’d in part, 122 F.3d 1423, Appeal Nos. 96-1271, 96-1279 (Fed. Cir. 1997) (hereinafter Midwest), the Court addressed the scope of heading 9505, HTSUS, specifically the class or kind of merchandise termed “festive articles,” and provided new guidelines for classification of such goods in the heading. In general, merchandise is classifiable as a festive article in heading 9505, HTSUS, when the article, as a whole:

1. Is not predominately of precious or semiprecious stones, precious metal or metal clad with precious metal;

2. Functions primarily as a decoration or functional item used in celebration of, and for entertainment on, a holiday; and

3. Is associated with or used on a particular holiday.

Based upon a review of the articles subject to the Midwest decision, Customs is of the opinion that the Court has included within the scope of the class “festive articles,” decorative household articles which are representations of an accepted symbol for a recognized holiday, and utilitarian/functional articles that are three-dimensional representations of an accepted symbol for a recognized holiday. See Informed Compliance Publication: "What Every Member of the Trade Community Should Know About: CLASSIFICTION OF FESTIVE ARTICLES as a result of the Midwest of Cannon Falls Court Case", published in the Customs Bulletin, Volume 32, Numbers 2/3, dated January 21, 1998.

In addition to the criteria listed above, the Court considered the general criteria for classification set forth in United States v. Carborundum Company, 63 CCPA 98, C.A.D. 1172, 536 F.2d 373 (1976), cert. denied, 429 U.S. 979 (hereinafter Carborundum). Therefore, with respect to decorative and utilitarian articles related to holidays and symbols not specifically recognized in Midwest or in the Customs Bulletin dated January 21, 1998, Customs will also consider the general criteria set forth in Carborundum to determine whether a particular good belongs to the class or kind “festive articles.” Those criteria include the general physical characteristics of the article, the expectation of the ultimate purchaser, the channels of trade, the environment of sale (accompanying accessories, manner of advertisement and display), the use in the same manner as merchandise which defines the class, economic practicality of so using the import, and recognition in the trade of this use.

The merchandise under protest appears to be a utilitarian or functional article because it conforms to the general characteristics of dinnerware designed to be used in the home to serve food and beverages. As indicated, supra, the Midwest court looked at Carborundum evidence to help identify whether a particular article conformed to the uses expected of festive articles.

As to physical characteristics, this article is in every respect dinnerware. Although the plates and cups are decorated with a flat two-dimensional design, it is not designed to decorate the home for a particular holiday as commemorative Christmas plates might be. It is not uncommon to decorate dinnerware. In fact, much of the finer dinnerware for sale in the United States is decorated either by color, design, or both. This dinnerware is real and functional and corresponds to dinnerware with other designs and patterns, in piece size and variety.

As to expectation of the ultimate purchaser, the dinnerware does not do anything except to provide a means of serving food without soiling the table. The plates are decorated with an image of a Christmas tree, making them appropriate for use during the Christmas holidays. However, this dinnerware is just as useful as dinnerware that does not have the Christmas tree decal.

With respect to the channels of trade, the dinnerware is sold by retail outlets that sell dinnerware that is used at all times of the year. Dinnerware with decorations is sold with all other dinnerware. Typically, when there are divisions in display in larger stores, the fine china is kept in one area and the "casual" dinnerware is kept nearby. The difference in the two is primarily cost, but the Christmas thematic decoration appears in both the fine and casual dinnerware.

The environment of the sale, including manner of advertisement, accompanying accessories and display, remains with dinnerware. The dinnerware of the type under consideration does not appear with Christmas ornaments, fake Christmas trees, or Christmas tree lights. It is typically sold with other dinnerware.

With respect to the use of the article in the same manner as merchandise which defines the class, this article is used identically to dishes and earthenware serveware without the Christmas Tree decoration. The application of the decal under the glaze does not transform a plate, for example, into a festive article.

With respect of the recognition of the trade of its use, there are not salespeople who sell dinnerware with a Christmas tree decoration, to the exclusion of other dinnerware. All salespeople would gladly sell any dinnerware that a customer might be interested in at the dinnerware section of a store. Moreover, makers of fine and casual dinner typically sell Christmas theme merchandise along with their complete line of dinnerware. For example, checking the availability of Christmas-related designs from a dinnerware replacement service showed two designs from International Sunmarc, three designs from Mikasa, two from Nikko, one from Spode, two from Sango, one from Royal Albert, one from Pfaltzgraff, one from Royal Worcester, one from Royal Doulton, one from Fitz and Floyd, one from Lenox, one from Mason, and three from Noritake. Such a large offering shows that many of the major dinnerware manufacturers are not specialized into making an article outside the class of dinnerware. The Christmas Tree design dinner belongs to the class of dinnerware and is not used as a commodity in a manner other than as dinnerware.

This merchandise fails to qualify as an article of heading 9505, HTSUS.

HOLDING:

The merchandise is classified in subheading 6912.00.3950, HTSUS.

The protest should be DENIED.

In accordance with Section 3A(11)(b) of Customs Directive 099 3550065, dated August 4, 1993, Subject: Revised Protest Directive, you are to mail this decision, together with the Customs Form 19, to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry or entries in accordance with the decision must be accomplished prior to mailing the decision.

Sixty days from the date of the decision, the Office of Regulations and Rulings will make the decision available to Customs personnel, and to the public on the Customs Home Page on the World Wide Web at www.customs.ustreas.gov, by means of the Freedom of Information Act, and other methods of public distribution.

Sincerely,

John Durant, Director
Commercial Rulings Division

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